Is His Gun-Control Concurrence Justice Thomas’s Finest Hour?

Down in our nation’s capital, the day belongs to a lot of people: To retiring Supreme Court justice John Paul Stevens, who Monday capped his lengthy career on the court; to Elena Kagan, who survived her first day of Senatorial grilling; to Robert Byrd, an institution within the institution, who died on Monday at age 92.

But in the mind of some law professors and Supreme Court watchers, the day belonged to Justice Clarence Thomas, for his concurring opinion in McDonald v. Chicago. (Click here for the opinion; here for Nathan Koppel’s writeup in the WSJ; here for Adam Liptak’s treatment in the NYT.)

Understanding why requires us to back up just a bit.

In the McDonald case, the justices were asked by the plaintiffs to strike down Chicago’s gun-control ordinance as a violation of the Second Amendment to the Constitution.

In order to do so, the justices would have to make two maneuvers. Of course, they’d have to rule that the ordinance runs afoul of the Second Amendment’s prescription that “the right of the people to keep and bear Arms, shall not be infringed.” But they’d also have to rule that the Second Amendment restricts not just Congress’s ability to make laws controlling the use of guns, but that of state governments as well. Remember, the Bill of Rights, as originally constructed, only applies to the federal government.

In order to extend the Second Amendment to laws passed by states or cities, the court was faced with a choice of two clauses embedded in the 14th Amendment. It could “incorporate” the Second Amendment to the states through the 14th Amendment’s Due Process Clause. Or, pursuant to the 14th Amendment’s Privileges or Immunities Clause, it could deem “the right to bear arms” one of the “Privileges” or “Immunities” that the states are forbidden from taking away.

So you’ve never heard of the Privileges or Immunities Clause? We’re not surprised. The clause was largely neutered in a set of cases decided in 1873.

So in order to extend the Second Amendment to the states, the court seemed to be left with the Due Process Clause. That is, the court would have to rule that the right to bear arms was a right so fundamental that there could be no lawful way to abridge it without violating due process of law.

But constitutional scholars have long argued that “incorporation” through the Due Process Clause was misguided. “It’s a pretty impossible concept to explain because the Due Process Clause was not the vehicle by which the 14th Amendment founders thought they were safeguarding fundamental rights,” said Douglas Kendall, the head of the Constitutional Accountability Center, to the WSJ’s Jess Bravin last year.

Commentators on the right and left urged the Supreme Court to reverse the 1873 cases and safeguard the right to bear arms through the Privileges or Immunities Clause. Such a move could have opened an avenue for individuals to claim new rights, some which might have pleased liberals, others which might have pleased conservatives.

Those arguing for resuscitation of the Privilege or Immunities Clause pinned their hopes on Justice Antonin Scalia and Justice Clarence Thomas, both known for their “originalist” approach to constitutional interpretation.

But Justice Scalia on Monday opted, along with Justices Alito and Kennedy and Chief Justice Roberts, to use the Due Process Clause. As Liptak noted, Justice Scalia, in a concurrence, “acknowledged misgivings about using the due process clause to apply Bill of Rights protections to the states” but went along with it “’since straightforward application of settled doctrine suffices to decide it.’”

But in a separate concurrence, Justice Thomas boldly went where no justice has gone before: to the arms of the Privileges or Immunities Clause. He wrote:

[T]he text of the Privileges or Immunities Clause . . . command[s] that “[n]o State shall . . . abridge” the rights of United States citizens . . . the Clause establishes a minimum baseline of federal rights, and the constitutional right to keep and bear arms plainly was among them.

The rationale didn’t carry the day, but many legal commentators were thrilled by Justice Thomas’s concurrence. “He’s sticking with the text of the Constitution,” said Georgetown law professor Randy Barnett, to the Law Blog. “At the same time, nobody voices disagreement with Justice Thomas. And that’s because they can’t.”

His opinion is scholarly and judicious, and it cements his standing as the only Justice who is more than a half-hearted originalist.

Barnett and others hope that Thomas’s lone dissent has planted the seeds for a constitutional reawakening rooted in the Privileges or Immunities Clause.

So what happened to Justice Scalia? In Barnett’s opinion, Scalia “doesn’t like unenumerated rights, and he’s afraid that the Privileges or Immunities will sanction unenumerated rights.” Adds Barnett: “Perhaps he’s right to be concerned, but it certainly goes against his originalism.”

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